The Value of Repetitive Question Structures in Direct and Cross Examination


By Thomas M. O’Toole, Ph.D.

I have previously written about how important repetition is to persuasion. I discussed how repetition increases retention, familiarity, and believability. In this post, I want to talk about one practical way of building repetition into your case presentation at trial.

Direct and cross examination make up the vast majority of what happens over the course of trial. Yet we have found that this is the part of trial that jurors struggle with the most. Opening statements and closing arguments (should) have a clear beginning, middle, and end with clear transitions, points, and subpoints, all of which make the presentation easy to follow, understand, and remember. However, witness testimony is different. It does not follow a similar kind of presentation structure that allows the layperson to organize all of the information into a sensible or accurate framework. Instead, witnesses are often scheduled based upon availability (particularly the experts), which results in a fractured (and somewhat disorganized) order of evidence. In other words, the witnesses do not always testify in an order that naturally follows the case narrative. Aside from the witness order, the individual testimony can be grueling for jurors to sit through. The process of laying foundation can be painfully boring, opening the door for many jurors to mentally check out and start daydreaming. The same is true for side-bars during witness testimony and many of the other things that drag out the process, such as attorney disorganization and fumbling with technology.

The end result is that jurors can quickly lose sight of key themes, facts, or arguments during this stage of the trial. Repetition is a great way to prevent this. Something we do on the vast majority of the cases we consult on is develop thematic direct and cross examination scripts. We do not script out the entire direct and cross. Instead, we draft questioning segments for attorneys that help reinforce our central themes, facts, and arguments. These questioning segments are usually short, but they hit on key thematic points. For example, consider a case where the defense has focused on the theme of personal accountability and the plaintiff’s pattern of poor decision-making. Here’s an example of a script we might use:

Question 1: Mr. Smith, are you aware that Mr. Jones had consumed alcohol before using the G630?

Question 2: And are you aware that the instruction manual warns customers to never use the G630 if they are impaired?

Question 3: In fact, the instruction manual tells customers that they could be seriously injured if they used the G630 while impaired, right?

Question 4: Are you also aware that Mr. Jones tried to tinker with the G630 to give it more cutting power?

Question5: And are you aware that the instruction manual also warns customers against trying to make any changes to the product?

Question 6: And again, those warnings say that trying to make changes to the product could result in serious injury, right?

Typically, the list of questions will be a little longer than this example, but the example gives a sense of the kinds of questions we build into these scripts. With these questions, we do not care what the witness’s answer is. The answer is irrelevant. We are using the questions to communicate directly to the jury. The real value is having jurors hear these scripted segments over and over again. We tell attorneys to use these scripts with every applicable witness and ask the questions in the same order each time, using the exact same wording. This creates a repetitive structure for jurors that they hear over and over again. At some point, they start to internalize the questions and know what is coming as soon as the attorney starts the script. That is when you know you have accomplished your goal because it means the jurors have committed the questions to memory, meaning they are more likely to recall and access these key facts, focus points, or arguments during deliberations. This is important because so much of trial is a battle for salience. Some research suggests that jurors will remember as little as 10% of what they hear over the course of trial by the time they reach deliberations, meaning the real challenge for attorneys is coming up with creative strategies for increasing jurors’ retention. This kind of repetitive structure accomplishes exactly that.

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